Opinion
DOCKET NO. A-6129-12T3
08-21-2015
STANISLAV SIMALA, Appellant, v. BOARD OF REVIEW, DEPARTMENT OF LABOR and REMODELING DIRECT, INC., Respondents.
Stanislav Simala, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief). Respondent Remodeling Direct, Inc., has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from the Board of Review, Department of Labor, Docket No. 409,058. Stanislav Simala, appellant pro se. John J. Hoffman, Acting Attorney General, attorney for respondent Board of Review (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter H. Jenkins, Deputy Attorney General, on the brief). Respondent Remodeling Direct, Inc., has not filed a brief. PER CURIAM
Stanislav Simala appeals from a July 18, 2013 decision of the Board of Review (Board), denying him unemployment benefits. Simala also appeals the Board's denial of his motion for reconsideration.
Simala claims his employer, Remodeling Direct, Inc., had no work available after he recovered from a work related fall where he suffered two fractures of his wrist. He also claims his employer engaged in illegal actions in the workplace, which constituted good cause for not returning to employment, even if work had been available. Rejecting his claims, the Board upheld the Appeal Tribunal's finding that Simala voluntarily did not return to work, without good cause, when he was medically able to do so.
Simala further asserts he was denied an interpreter by a representative of the Appeal Tribunal, despite his native language was Slovak. Simala spoke and understood some English, but contends he could not clearly communicate his arguments or fully understand complicated topics because of his limited English. We hold that Simala should have been provided an interpreter at his June 11, 2013 hearing before the Appeal Tribunal. The failure to do so deprived him of a fair hearing. As a result, we reverse the decision and remand the matter for a new hearing.
Spoken in Czechoslovakia, Hungary and Yugoslavia.
The relevant facts are as follows. Simala was previously employed by Remodeling Direct, Inc. In February 2012, while on the job, he fell from a ladder and was injured. Simala contends that Kevin Hutchings, President and owner of Remodeling Direct, attempted, albeit unsuccessfully, to prevent him from obtaining workers' compensation following his fall; Simala asserts that Hutchings made him continue to perform heavy lifting despite a doctor's order restricting him to light duty. Simala also claims he was told to lie and say his injury was not work related. Simala further contends his employer generally acted in bad faith and illegally as a result of his workers' compensation case.
By September 2012, when Simala was cleared to return to work, he knew Remodeling Direct did not have any projects for him to work on. He contends his employer's last remaining employee had been laid off on August 10, 2012, because there was no work. Knowing this to be true, Simala applied for unemployment to provide an income for his wife and three children, without first directly calling his former employer.
Reviewing the transcript of his hearing and the findings of the Appeal Tribunal - which were adopted by the Board - it appears the issue of whether any work was available was never adequately considered as a direct result of Simala's lack of proficiency in English. The transcript of Simala's hearing contains over fifty places where the transcriber found dialogue "inaudible." As a result, the record contains gaps in testimony. Although Simala was able to speak and respond to questions in broken English, his difficulty in communicating in his non-native language is evident upon a careful reading of the transcript.
For example, the examiner first asked Simala if he had a copy of the notice of the determination that denied him benefits because he had left work voluntarily and Simala responded "I have three Determination." He was asked twice by the examiner his title and responded twice "working," followed by an inaudible word. The examiner then told him that his title was Project Manager, and Simala agreed. When the examiner asked why March 19, 2012 was his last day, Simala responded "the last day is 19th . . . March 19th." The examiner repeated the question and the exchange that follows was very unclear and confusing.
At one point, the examiner asked Simala if he told his employer he was injured and Simala responded with "happened February 27." The rest of the transcript reflects numerous similar exchanges where Simala did not seem to understand the question posed to him and answered in broken English. The hearing examiner did attempt to clarify the testimony at times, but she exhibited her frustration several times by telling Simala that she did not understand what he was trying to explain.
When the hearing examiner asked Simala why he did not go back to work in September 2012, Simala responded that there were three reasons, but then there is a disjointed exchange between Simala and the examiner discussing details about Simala's complaints about how he was mistreated by his employer. No direct question as to whether work was available in September was ever directed to Simala.
When Hutchings testified, the examiner asked if it was true he told Simala to lie about being injured at work. Hutchings responded, "not 100%," and then stated he could not recall the conversation. When pressed for a more specific answer, Hutchings stated that he did not know if he told Simala to lie. In June 2012, Hutchings texted Simala that he wanted him to come back to work but there was no communication to Simala when he was medically cleared for work. Hutchings stated that the only communication he had with Simala in September 2012 was through Simala's workers' compensation lawyer. Hutchings testified he could not recall whether there was any discussion with the lawyer about whether Simala was coming back to work.
The examiner eventually asked Hutchings directly if Direct Remodeling had work available in September 2012 for Simala. Hutchings replied, "[a]s long as we went through the necessary paperwork and revised reemployment and things like that. Back in September I didn't know (inaudible) in the . . . I didn't think the company was ready to rehire." The examiner then pressed Hutchings on the issue of whether any work was available for Simala in September 2012, and Hutchings repeatedly avoided the question. Hutchings finally stated that he would have sat down and talked to Simala if contacted. He never, however, answered the direct question as to whether the company had any work for any employees.
Within hours after the telephone hearing before the Appeal Tribunal, Simala was so concerned about his failure to properly present his case he faxed a letter to the hearing examiner stating he was upset at the hearing. Simala wrote, "I did not think of it until after we go phone," but still did not address the lack of work issue.
On June 11, 2013, the Appeal Tribunal sent Simala a written decision finding he did not have good cause to voluntarily leave his employment. The issue of whether work was available was not mentioned in the opinion. Simala sent a letter to the Board, appealing the Appeal Tribunal decision. In the letter, he stated that Direct Remodeling laid off all its employees in August 2012, and that he did not contact his employer because he knew his employer was not doing any work. Simala attached a copy of a co-worker's signed separation agreement on his employer's stationary, which stated the worker was separated from his employment with the employer due to "NO WORK." Simala informed the Board that this document was signed by the last employee of Direct Remodeling when the company ceased work and there was no work available in September 2012.
Thereafter, the Board adopted the findings of the Appeal Tribunal on July 18, 2013, and denied Simala unemployment benefits for voluntarily leaving work without good cause. Again, the issue of whether work was available was not mentioned in the decision.
Subsequently, Legal Services of New Jersey filed a request for reconsideration to the Board on behalf of Simala. The brief filed by Legal Services requested a new hearing and that Simala be provided with an interpreter. The brief raised the same questions raised in this Appeal: (1) Was Simala entitled to the assistance of an interpreter, and (2) did the failure to provide an interpreter result in a denial of due process and an unfair hearing?
Legal Services attached to the request for a new hearing an expert report from an interpreter, who opined that after reviewing the transcript, it was clear that Simala was not sufficiently proficient in English to understand or testify about complicated issues before the hearing examiner. In addition, Legal Services provided a document demonstrating that when a State investigator from the Department of Labor spoke to Hutchings in May about possible violations of State regulations, Hutchings advised the investigator the company still had no work and no employees as of May 2013. Simala was denied his request for a new hearing and filed this appeal.
We begin by restating well-settled principles governing our standard of review. Our role in reviewing administrative agency decisions involving unemployment benefits is generally limited. Brady v. Bd. of Review, 152, N.J. 197, 2010 (1997). We defer to fact-findings if reasonably based on the proofs. Ibid. Nonetheless, we shall intervene when the agency's action is arbitrary, capricious or unreasonable, or "'clearly inconsistent with its statutory mission or with other State policy.'" Ibid. (quoting George Harms Constr. Co. v. N.J. Tpk. Auth., 137 N.J. 8, 27 (1994)).
We must consider the purpose of the unemployment compensation law of New Jersey. The Unemployment Compensation Act, N.J.S.A. 43:21-1 to -56, was enacted to afford protection against the hazards of economic insecurity due to involuntary unemployment. N.J.S.A. 43:21-2 (emphasis added). See Krauss v. A. & M. Karagheusian, 13 N.J. 447, 455 (1953); Schock v. Board of Review, Employment Sec, 89 N.J. Super. 118, 128 (App. Div. 1965), aff'd, 48 N.J. 121 (1966). In order to further its purposes, the law is to be construed liberally in favor of allowance of benefits. Nonetheless, it is also important to preserve the fund against claims by those not intended to share in its benefits. The basic policy of the law is advanced when benefits are denied in improper cases just as when they are allowed in proper cases. Krauss, supra, 13 N.J. at 455-56; Schock, supra, 89 N.J. Super. at 125.
In the context of a possible denial of unemployment benefits, a claimant is entitled to adequate notice and an opportunity to be heard. Garzon v. Bd. of Review, Dept. of Labor, 370 N.J. Super. 1, 5 (App. Div. 2004). As stated by the Supreme Court, "the citizen facing a loss at the hands of the State must be given a real chance to present his or her side of the case before a government decision becomes final." Rivera v. Board of Review, 127 N.J. 578, 583 (1992).
Simala does not contend he received inadequate notice of the hearing. Instead, he contends that his request for an interpreter should not have been denied without proper consideration. The same legal principles of due process and fairness addressed by the Supreme Court in Rivera apply to this matter.
We have repeatedly acknowledged the important role that proper translation into the language of the litigant plays in our legal system. See State v. Marquez, 202 N.J. 485, 514 (2010) (reversing the defendant's refusal to submit to a breath test conviction because the standard statement read by the police, which explained the consequences of his refusal, was only read in English, a language the defendant did not speak or understand); Daoud v. Mohammad, 402 N.J. Super. 57, 61 (App. Div. 2008) (noting that "'[i]nterpreters should be provided whenever a failure of communication may have significant negative repercussions.'" (quoting Standard 1.2 of the Administrative Office of the Courts, Directive # 3-04 (Mar. 22, 2004))); State v. Rodriguez, 294 N.J. Super. 129, 138-39 (Law Div. 1996) (stating that an interpreter can be "potentially indispensable to the discharge of justice").
The "Standards for Delivering Interpreting Services in the New Jersey Judiciary" provide that "[a]ll people, including persons with limited proficiency in English, should have equal access to court proceedings, programs and services." Ibid. --------
As we said in a somewhat different context involving unemployment benefits, "we view an analysis under fairness principles to coincide with a procedural due process analysis, since at its core, due process calls for those procedural protections that fairness demands." Garzon v. Bd. of Review, 370 N.J. Super. 1, 9 (App. Div. 2004). A fundamental underpinning of fairness in any hearing is the ability to fully participate and communicate.
We find Simala did not have that opportunity. Reversed and remanded for a new hearing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION